Full case report

Richardson v Facebook; Richardson v Google (UK) Ltd

Reference [2015] EWHC 3154 (QB)
Court High Court, Queen's Bench Division

Judge Warby J

Date of Judgment 2 Nov 2015


Summary

Defamation – privacy – identity of defendant – definition of publisher – liability of ISPs


Facts

C sued in relation to the publication of a fake Facebook profile and a Blogpost, both of which apparently belonged to C, but were in fact created by an imposter. Both were taken down after C notified Facebook and Google respectively. C claimed that both publications were defamatory of her and infringed her right to respect for her private life under Article 8 ECHR.

C brought actions against “Facebook” and “Google UK Limited”. Facebook UK took the position that it does not control user data – such control resting with Facebook Inc and Facebook Ireland Ltd. Google similarly took the position that Google UK had no responsibility for hosting the Blogger site or control over what was published on the site.

In June 2015 Master Kay QC dismissed both actions, on the principle ground that in each case the entity C sued or had attempted to sue was not responsible for the publication complained of. C sought to appeal those decisions, and asked for certain issues to be referred to the CJEU for a preliminary opinion.

C had also separately brought a claim in the High Court in Manchester against Google Inc and Google UK in misuse of private information and data protection. That case was not before the court, but the Judge referred to it in his judgment.


Issue

Should the Judge:

(1) Order a reference to the CJEU;

(2) If so, make orders for anonymity in the reference; and

(3) Direct a stay of proceedings pending the reference, or;

(4) Grant permission to appeal against the orders of Master Kay QC;

(5) If so, allow the appeals


Held

Warby J dealt with issues (4) and (5) first, stating that if there are no arguable grounds of appeal it is hard to see to what proceedings C might attach her application for a reference to the CJEU:

(4) and (5) There was no merit in the argument that an earlier order of Master Kay allowing C to amend her Particulars of Claim included amending the name of the Defendant (from Facebook to Facebook UK), nor that C as a litigant in person should be given some leeway as to the matter of party identity.

In any event the Master was plainly correct in finding that C had failed to plead a reasonable case of responsibility for publication against Facebook UK or Google UK and, relying on Byrne v Deane, there was no realistic prospect that a court at trial would conclude that they were responsible for publication of the publications complained of.

C sought to argue that the reasoning of the CJEU in Google Spain could and should apply to defamation and privacy cases and that therefore the UK subsidiaries could be liable for the actions of the parent companies. Warby J found this to be entirely misconceived. The test in data protection cases such as Google Spain, based as it is on the EU-wide data protection framework is entirely different from the question of whether Facebook and/or Google are publishers for the purposes of the purely domestic causes of action of defamation and misuse of private information. Further, the CJEU in Google Spain did not find that subsidiaries and parent companies could be treated as a single unit for the purposes of data protection law or that the European subsidiary could be liable for the actions of the parent company, rather, that given its European operations, Google Inc was subject to the provisions of European data protection law.

C’s claim that Facebook and Google were “hybrid public authorities” for the purposes of direct application the Human Rights Act was also rejected. Neither company carries out public functions.

(1) C sought preliminary references on two points, Warby J rejected both:

(a) For an authoritative interpretation of the Data Protection Directive and Google Spain. This was rejected as the case did not give rise to any issue requiring such an interpretation, and in any event the position is quite clear

(b) for the CJEU to determine whether the Defendants are hybrid public authorities pursuant to Article 8 ECHR. This was rejected as misconceived in principle. The definition of “hybrid public authority” is a matter of domestic law, as is the interpretation of the ECHR (subject to the supervision of the ECtHR)

(2) and (3) The Judge having found as he did on issue (1), those issues fell away.


Comment

In short the court found that C had sued the wrong defendants – if actions were to be brought they should have been against Facebook Inc and/or Facebook Ireland Ltd and Google Inc. On the evidence before the court the Judge’s findings that the UK subsidiaries were not publishers of the material at common law are not surprising. C had issued proceedings in Manchester against Google UK (against whom she had since discontinued) and Google Inc. The Judge noted that this meant C was capable of navigating the procedures for serving a Defendant out of jurisdiction.

There is an interesting point on limitation at paragraph 50 of the judgment. Warby J accepted that there is room for debate about whether the new single publication rule (section 8 Defamation Act 2013) applies to cases where the first publication took place before the Act came into force (1 January 2014). Those who take the view that it does apply would said that the old rule applied to all publications of that article/blog post etc before 1 January 2014 – i.e. each time it was accessed was a new publication; and the first time it was accessed on or after 1 January 2014 constitutes a single publication under the new rule, with time starting to run for limitation purposes from that date. However, as Warby J acknowledges, the matter has not yet been tested before the court.


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Instructing Solicitors

White & Case for Facebook UK Ltd, Pinsent Masons for Google (UK) Ltd